December 06, 2011

Absent "exigent circumstances," such as a fire or outbreak of violence, U.S. Park Police agreed Monday night not to move Occupy D.C. demonstrators or their tents without first giving 24-hour notice to a Washington federal judge.

The agreement is temporary, however, and has set the stage for a January hearing on the legal rights of Occupy D.C. demonstrators to remain on National Park Service land.

The hearing before U.S. District Judge James Boasberg was the latest in a series of fast-moving events that began with the construction of a temporary wooden structure by Occupy D.C. demonstrators in McPherson Square over the weekend. After demonstrators refused to take down or leave the shelter, 31 people were arrested on Sunday and charged with either crossing a police line or failing to obey orders to leave the shelter.

During the confrontation, Washington solo practitioner Jeffrey Light, a pro bono attorney for the demonstrators, learned that Park Police were considering removing some tents from a cordoned off area of the park. Light filed a
complaint (PDF) against the Park Police in U.S. District Court for the District of Columbia on Monday and
moved for a temporary restraining order (PDF)m to stop police from removing or blocking access to the tents.

Boasberg heard arguments on the temporary restraining order on Monday evening. He denied the request, instead brokering an agreement that Park Police would not move tents or people without first giving the court and Light 24-hour notice. National Park Service regulations prohibit camping, but the agency has yet to enforce that regulation against Occupy D.C.

Assistant U.S. Attorney Marina Braswell was careful to make sure the agreement was conditional on the absence of “exigent circumstances” that threatened public safety, such as an outbreak of violence. Light agreed to that condition.

Light will have until Jan. 3 to file a motion for a preliminary injunction against Park Police and argue in favor of the demonstrators’ legal right to remain in the park. Boasberg scheduled arguments on the motion for Jan. 31.

Light and other attorneys for Occupy D.C. have argued that the demonstrators are not camping — instead, they claim that the act of “occupying” McPherson Square is an integral part of their protest and is protected by the First Amendment.

Boasberg warned Light that he will need to tackle a 1984 U.S. Supreme Court ruling that favors the government, Clark v. Community Creative Non-Violence. In Clark, the National Park Service cited its regulation against camping in barring demonstrators from sleeping in tents in order to raise awareness of homelessness. The court found that the National Park Services’ regulation barring camping was reasonable and did not violate the First Amendment.

Light said he will argue that the Occupy D.C. tents are an essential part of the protest, not just a means of facilitating the demonstration.

“I think one of the important things about Clark is that it dealt with facilitative, rather than expressive conduct,” Light said. “The tents and the occupation is the protest. It is the message.”

Braswell declined to comment.

Almost all of the 31 arrested demonstrators have been released since Sunday. Most will have 15 days to decide whether to come back to court or else resolve their case by posting bond and then waiving their right to appear in court, commonly known as “post-and-forfeit.”